The Impact of Positive Political Theory on Old Questions of Constitutional Law and the Separation of Powers

Abstract

Two of the oldest and most frequently recurring constitutional questions are: to what extent should courts defer to the other branches of government, and what is the best judicial philosophy? These two normative questions are subsumed within the broader issue of the role of the judiciary within the separation of powers system. Scholarly conceptions of the role of the judiciary have been shaped by three key approaches: traditional theories, such as legal formalism, conceive of judges as impartial law discoverers; attitudinalists and legal realists see judges as partisan law creators; positive political theorists perceive judges to be strategic actors who maximize utility within a constrained environment. This Essay explores the contribution of positive political theory, an important new political science technique, to the study of judicial politics. Positive political theory allows scholars to address the broader question of judicial role without requiring resolution of the normative questions underlying it.

Keywords: Positive Political Theory, Ideology, Strategy, Legalism, Separation of Powers

JEL Classification: K1, K10, K40